Saturday, August 16, 2008

Government Blocked From Being Free To Trick and Coerce Immigrants At The Border

An immigrant gets off a plane at Newark Airport. He walks up to the customs and border patrol officer to discuss whether the US will let him enter officially. At that moment, are there any Constitutional limitations to what the officer is about to do to the immigrant? Would there be any problem if the US officer confuses, tricks, or coerces the immigrant into signing various documents and then later tries to use those signatures against him?

Incredibly and disturbingly, the government actually argued that there are no Constitutional limitations to anything the officer does to someone in Newark Airport trying to enter. On August 1, 2008, the Seventh Circuit in Bayo v. Chertoff, No. 07-1069 (7th Cir. Aug. 1, 2008) tossed out the government's dangerous argument.

The government focused on two cases -- an enemy combatant convicted by a particular kind of military commission outside the US does not have some basic Constitutional protections (Johnson v. Eisentrager, 339 U.S. 793 (1950)) and there are no Constitutional limits on American officers searching a Mexican citizen's home in Mexico (United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)). It is a long way to get from those cases to the immigrant standing at the airport in the US who is talking to an official to get officially admitted into the US.

The Seventh Circuit noted that the recent decision of Boumediene v. Bush, 128 S. Ct. 2229 (2008) suggests there are some limitations because the US's powers outside its borders are not absolute and unlimited -- instead, they have restrictions as expressed in the Constitution.

So thanks to the Seventh Circuit, yes, someone who is physically in the US and technically not yet legally admitted into the US because he is still talking with the border official in the airport terminal does have at least some Constitutional protections.

It is pretty frightening to see the extreme positions that government attorneys are trying. I dread to think it is American taxpayer dollars hard at work.

The decision is at

(Look at the illegible photocopies that the government lawyers gave the court. The two pages are at the end of the decision. They should have spent some money on doing a halfway-decent photocopying job.)

Great work by Laureen Anderson of Horn Abuzir Khalaf Mitchell & Schmidt in Chicago.

Attorneys for the government included Anthony Wray Norwood and Terri J. Scadron of the Office of Immigration Litigation in the Department of Justice.


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